Citation NR: 9623771
Decision Date: 08/22/96 Archive Date: 08/30/96
DOCKET NO. 92-03 778 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to a compensable evaluation for residuals of
an excised pilonidal cyst.
2. Entitlement to service connection for a left ear hearing
disability.
3. Entitlement to service connection for a right ear hearing
disability.
4. Entitlement to service connection for peripheral vascular
disease.
5. Entitlement to service connection for residuals of a left
below the knee amputation.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Melissa F. Marquez, Associate Counsel
INTRODUCTION
The appellant had active service from August 1943 to December
1945, from January 1946 to September 1949, from September
1949 to October 1953, and from November 1953 to August 1964.
This matter originally came before the Board of Veterans'
Appeals (hereinafter Board) on appeal from a January 1992
rating decision of the Columbia, South Carolina Regional
Office (hereinafter RO), of the Department of Veterans
Affairs (hereinafter VA), which granted service connection
for residual scarring due to excision of a pilonidal cyst,
but denied service connection for bilateral hearing loss, as
well as circulatory problems to include a left below the knee
amputation.
Due to the Board’s holding below, the issue of service
connection for bilateral hearing loss has been separated in
order to adjudicate service connection for the left ear and a
right ear separately.
The issues of an increased evaluation for residuals of a
pilonidal cyst, as well as service connection for a right ear
hearing disability, are not inextricably intertwined with the
remaining issues certified for review, and will be discussed
in the Remand section below.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that he is entitled to
service connection for bilateral hearing loss and peripheral
vascular disease (PVD). He argues that he was exposed to
acoustic trauma during active service, resulting in a current
hearing disability. He further argues that he suffered from
circulatory problems following excision of a pilonidal cyst
during active service, which resulted in the development of
PVD of a left lower extremities with a below the knee
amputation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence warrants service
connection for a left ear hearing disability. However, the
Board finds the appellant has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claims for service
connection for PVD, to include a left below the knee
amputation, are well-grounded.
FINDINGS OF FACT
1. All available, relevant evidence necessary for
disposition of the instant issues has been obtained by the
RO.
2. Audiometric testing demonstrates that the appellant
initially incurred a left ear hearing loss disability during
active service. The appellant currently has a left ear
hearing loss disability which can be reasonably attributed to
active service.
3. There is no objective credible evidence on file that the
appellant’s PVD, initially demonstrated in the late 1980’s,
with a resulting left below the knee amputation performed in
1990, are attributable to active service or to any event or
occurrence therein, and the claims are not plausible
CONCLUSIONS OF LAW
1. A left ear hearing loss disability was incurred during
active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 &
Supp. 1995); 38 C.F.R. §§ 3.102, 3.304, 3.385 (1995).
2. The appellant has not submitted evidence of well-grounded
claims for entitlement to service connection for PVD and
residuals of a left below the knee amputation. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1131, 5107(a) (West 1991 & Supp.
1995); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I.
Entitlement to service connection for a left ear hearing loss
disability.
Initially, the Board finds that the appellant's claim for
entitlement to service connection for left ear hearing loss
is well grounded within the meaning of 38 U.S.C.A. § 5107(a)
in that he has presented a claim which is plausible, and that
the evidence is adequate in light of our favorable decision
on this issue. 38 U.S.C.A. § 5107(a).
In adjudicating a well-grounded claim, the Board determines
whether (1) the weight of the evidence supports the claim or
(2) the weight of the "positive" evidence in favor of the
claim is in relative balance with the weight of the
"negative" evidence against the claim. The appellant
prevails in either event. However, if the weight of the
evidence is against the appellant's claim, the claim must be
denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v.
Derwinski, 1 Vet.App. 49 (1990).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a
disorder is not shown to be chronic during service,
continuity of symptomatology after discharge is required to
establish that a disorder is chronic. 38 C.F.R. § 3.303.
Pursuant to a recent regulation, service connection for
impaired hearing shall be established when hearing status
meets pure tone and speech recognition criteria. 38 C.F.R.
§ 3.385. For VA purposes, impaired hearing will be
considered to be a disability when the auditory thresholds in
any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz
is 40 decibels or greater; or when the auditory thresholds
from at least three of the frequencies of 500, 1000, 2000,
3000 or 4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. Id.
The United States Court of Veterans Appeals (Court) has held
that 38 C.F.R. § 3.385 does not preclude an award of service
connection for a hearing disability which was not initially
manifested during service or within the one year presumptive
period applicable thereto. See Hensley v. Brown, 5
Vet.App. 155, 159-60 (1993) (citing 38 C.F.R. § 4.85, Tables
VI, VIa, VII (1992)). Under these circumstances, direct
service connection may nevertheless be established by
evidence demonstrating that a current hearing disability
under 38 C.F.R. § 3.385 is in fact causally related to
military service. Id. (citing 38 U.S.C.A. § 1110, 1112 and
38 C.F.R. § 3.303, 3.307); Godfrey v. Derwinski, 2 Vet.App.
352, (1992).
Service medical records reflect that the appellant’s hearing
was recorded as 15/15 in the whispered voice on multiple
examinations dated from 1943 to 1960. However, audiometric
testing dated in June 1960 revealed thresholds of -5(10),
5(15), 25(35), and 35 (40) decibels in the left ear at 500,
1000, 2000, and 4000 Hertz, respectively. (The figures in
parentheses are based on ISO Standards to facilitate data
comparison. Prior to November 1967, audiometric results were
reported in ASA Standards in service medical records.)
Unfortunately, no subsequent audiometric testing was
performed during active service, or upon examination prior to
retirement from active service in August 1964.
Relevant personnel records are not currently associated with
the claims folder. In this regard, the appellant presented
sworn testimony in February 1996 that he was exposed to
acoustic trauma while serving as a Steward during active
service, at which time he assisted in the loading and
unloading of guns, and worked in the boiler room of the ship.
Subsequent audiometric testing in October 1968 revealed
thresholds of 15, 15, 30, 30, and 30 decibels in the left ear
at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with
a notation of defective hearing indicated. As will be
discussed below, it is unclear whether this October 1968
examination was performed in conjunction with a period of
active or inactive duty for training, or otherwise.
Recent VA audiometric testing dated in January 1994 indicated
a current bilateral hearing loss disability for VA purposes.
At that time, a diagnosis of moderate to moderately severe
left ear sensorineural hearing loss was rendered.
Upon review of the record, the Board concludes that the
evidence on file warrants service connection for left ear
hearing loss. Service medical records indicate that the
appellant initially demonstrated a left ear hearing
disability in 1960, which has apparently continued to date.
Thus, resolving doubt in the appellant’s favor, service
connection for defective hearing of the left ear is
warranted.
II.
Entitlement to service connection for PVD, to include a left
below the knee amputation.
The threshold question to be answered is whether the
appellant has presented evidence of a well-grounded claim
with respect to the issues of service connection for PVD, to
include a left below the knee amputation. A well-grounded
claim is one which is plausible, meritorious on its own, or
capable of substantiation. Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990). If a particular claim is not well grounded,
then the appeal fails. 38 U.S.C.A. § 5107(a). See Edenfield
v. Brown, 8 Vet.App. 384 (1995).
An appellant has, by statute, the duty to submit evidence
that a claim is well grounded. The evidence must "justify a
belief by a fair and impartial individual" that the claim is
plausible. 38 U.S.C.A. § 5107(a).
In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United
States Court of Veterans Appeals (hereinafter Court) held
that the appellant in that case had not presented a well-
grounded claim as a matter of law. The Court pointed out
that "unlike civil actions, the Department of Veterans
Affairs (previously the Veterans Administration) (VA)
benefits system requires more than an allegation; the
claimant must submit supporting evidence." Tirpak, at 611.
The evidentiary assertions by the appellant must be accepted
as true for the purposes of determining whether a claim is
well grounded, except where the evidentiary assertion is
inherently incredible or beyond the competence of the person
making the assertion. See King v. Brown, 5 Vet.App. 19
(1993); Robinette v. Brown, 8 Vet.App. 69 (1995). See also
Caluza v. Brown, 7 Vet.App. 498 (1995) (well grounded claim
requires competent evidence of (a) a current disability; (b)
incurrence or aggravation of disease of injury during active
duty; and (c) a nexus between in-service injury or disease
and current disability).
In this case, evidentiary assertions as to in-service
pathology and medical causation are beyond the competence of
the appellant.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection may be shown directly or, for certain
"chronic diseases" such as some vascular diseases, presumed,
if the disease manifested to a degree of 10 percent or more
within one year after the date of separation from service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309. If a disorder is not shown to be chronic during
service, continuity of symptomatology after discharge is
required to establish that a disorder is chronic. 38 C.F.R.
§ 3.303.
Service medical records dated from 1943 to December 1945,
including records dated in April and May 1956 pertaining to
draining of a perianal abscess diagnosed an anal fistula, do
contain any complaints, findings or diagnosis of PVD, nor any
related symptomatology. The record reflects that the
appellant filed an initial application for service connection
for a circulatory disorder with a left below the knee
amputation in June 1991, and reported recent private medical
treatment in support thereof.
Private treatment records from the Naval Hospital,
Charleston, South Carolina, St. Francis Xavier Hospital, and
Trident Regional Medical Center indicate that the appellant
was initially evaluated for left lower extremity claudication
in October 1989, with a one year history of relevant
symptomatology related thereto. Relevant electrodiagnostic
testing demonstrated occlusion of the left superficial
femoral artery, and as such, the appellant underwent a left
superficial femoral balloon assisted angioplasty with femoral
endarterectomy in October 1989; an endarterectomy of the left
distal iliac femoral artery, popliteal endarterectomy and a
left femoral bypass using the reverse saphenous vein in
December 1989; local wound control due to an infected left
groin in January 1990; an endarterectomy of the left external
iliac femoral peroneal bypass vein graft with vein patch
profundoplasty and angioscopy in February 1990; and a left
below the knee amputation due to severe PVD in May 1990 with
revisions performed in August 1990.
However, such records contain absolutely no evidence that the
appellant’s PVD, initially demonstrated in the late 1980’s,
is attributable to the appellant’s active service or to any
event or occurrence therein, including surgery to drain an
anal fistula in 1956.
In accord is a January 1994 VA examination, which noted the
appellant’s prior history of resection of a pilonidal cyst in
1956, as well as current severe PVD, status post left below
the knee amputation and surgery on the right side without
right pedal pulses. Such report contained absolutely no
evidence that the appellant’s PVD, initially demonstrated in
the late 1980’s, is attributable to the appellant’s active
service or to any event or occurrence therein, including the
abovementioned in-service procedure.
During a February 1996 personal hearing, the appellant
testified that he was hospitalized in or around 1956 for
surgery to remove a cyst, after which time he began
experiencing circulatory problems. He further reported that
he has suffered from discomfort in the back area since that
time, which progressed until he sought private treatment in
the late 1980’s. As such, he opined that his PVD was related
to his in-service surgery.
Because the appellant has not submitted any evidence
supportive of his claims, we are of the opinion that the
appellant has failed in his duty to submit "evidence" which
would "justify a belief by a fair and impartial individual"
that his claims for service connection for PVD with a left
below the knee amputation are plausible. See Tirpak,
2 Vet.App. at 611.
Initially, we note that there is absolutely no evidence on
file that the appellant incurred PVD during active service,
or proximate thereto. As discussed above, service medical
records are completely negative for any relevant clinical
findings, diagnoses or reported symptomatology.
Additionally, we note that there is absolutely no evidence on
file, other than the appellant’s assertions, that PVD with a
resulting left above the knee amputation is related to active
service, or to any event or occurrence therein. In fact, the
only competent credible evidence on file indicated that the
appellant initially sought private treatment for
symptomatology associated with PVD in the late 1980’s, and
such treatment records do not contain any evidence nor
medical opinions indicating that the vascular disorders
diagnosed in the late 1980’s are related to active service,
to include excision of a pilonidal cyst in 1956.
In this regard, the Board has considered all of the
appellant’s arguments and sworn testimony, however, lay
persons lack the medical expertise to offer an opinion
regarding medical causality or the existence of pathology.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992). See also
Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995). Whereas lay
evidence of symptomatology is considered credible evidence,
lay assertions of medical causation are not competent
evidence, and cannot constitute evidence to render a claim
well-grounded. Grottveit v. Brown, 5 Vet.App. 91 (1993).
Since there is no competent credible evidence that the
appellant incurred PVD during active service or proximate
thereto, or has a current PVD attributable to active service,
the appellant’s claims for service connection for PVD to
include residuals of a left below the knee amputation are not
well-grounded. Caluza, 7 Vet.App. 498 (1995); Grivois v.
Brown, 6 Vet.App. 136 (1994).
Finally, where a claim is not well grounded it is incomplete,
and the VA is obliged under 38 U.S.C.A. § 5103 to advise the
claimant of the evidence needed to complete his application.
Robinette v. Brown, 8 Vet.App. 69 (1995). The Board finds
that in this case, the RO has fulfilled that obligation by
letters to the appellant, the statement and supplemental
statements of the case.
ORDER
Service connection for a left ear hearing loss is granted.
Service connection for PVD, to include a left below the knee
amputation, is denied on the basis that it is not well-
grounded.
REMAND
A review of the file reveals that in October 1968, the
appellant underwent a quadrennial examination revealing
elevated audiometric thresholds in the appellant’s right ear;
however, it is unclear whether the appellant had a period of
active and/or inactive duty for training at that time. In
this regard, pertinent personnel records, including DD Forms
214 dated from the appellant’s first three periods of active
duty, are not currently on file.
In November 1993, the Board remanded this case to the RO in
order to obtain, in pertinent part, a medical opinion
regarding the etiology of the appellant’s hearing loss, as
well as a VA examination in order to determine the severity
of the appellant’s service connected residuals of an excised
pilonidal cyst. While the appellant was afforded VA
audiometric and general medical examinations in January 1994,
neither the requested medical opinion nor any clinical
findings related to residuals of the pilonidal cyst were
provided by the examiners. In this regard, the appellant has
continually reported that he suffers from painful scarring
and tenderness in the affected area.
Moreover, during the February 1996 personal hearing, the
appellant reported that he had received relevant private
treatment for hearing loss since separation from service, as
well as recent VA treatment. A request for these records
will be accomplished while this case is in Remand status so
as to ensure a complete record.
The Board regrets further delay with respect to the
appellant’s claims. However, the record is currently
inadequate for the purpose of rendering an informed decision.
See Schafrath v. Derwinski, 1 Vet.App. 589 (1991); Murphy v.
Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1
Vet.App. 90 (1990). In order to assure an adequate and
accurate record, this case is REMANDED to the RO for the
following developments:
1. The RO should contact the National
Personnel Records Center, and request
that they provide the appellant’s
complete personnel records not currently
associated with the claims folder.
Additionally, the RO should request NPRC
to verify all periods of active service,
active duty for training and/or inactive
duty for training of the appellant. In
this regard, it is noted that service
medical records on file reflect that the
appellant underwent a quadrennial
examination in October 1968, with
possible Reserve duty indicated. All
correspondence, as well as any records
received, should be associated with the
claims folder.
2. The RO should contact the VA Medical
Center in Charleston, South Carolina, and
request complete copies of all inpatient
and outpatient medical treatment records
of the appellant dated from 1968, to
include reports and/or films from all
electrodiagnostic testing. All pieces of
correspondence, as well as any medical or
treatment records obtained, should be
made a part of the claims folder.
3. The RO should contact the appellant
to determine whether he desires to submit
any additional evidence in support of his
claims, including but not limited the
names, addresses, and dates of treatment
of any physicians, hospitals, treatment
centers, or employers (private, VA or
military) who provided him with relevant
medical treatment not already submitted
to the RO or the Board, to include any
records associated with a reported claim
for disability compensation from a former
employer for hearing loss, and any
treatment records from a referenced
“American Ear.” The RO should
specifically request the appellant to
indicate whether he received any
audiograms during his reported 12 year
employment with a shipyard, and if so,
the dates and locations thereof. After
obtaining all of the appropriate signed
authorization for release of information
forms from the appellant, the RO should
contact each physician, hospital,
treatment center and employer specified
by the appellant to obtain any and all
medical or treatment records or reports
relevant to the above mentioned claims.
All pieces of correspondence, as well as
any medical or treatment records
obtained, should be made a part of the
claims folder. If private treatment is
reported and those records are not
obtained, the appellant and his
representative should be provided with
information concerning the negative
results, and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1995).
4. The RO should then schedule the
appellant for a complete audiological
examination to determine the nature,
etiology, and severity of any right ear
hearing loss currently manifested. All
indicated tests and studies should be
done, including but not limited to an
audiogram. The examiner must review the
service and post service medical records
on file and based on the medical records,
must express opinions on the following
questions: (1) the degree of probability
that any existing right ear hearing loss
was present in service; and (2) whether
the appellant's current right ear hearing
loss is attributable to acoustic trauma
incurred during active service, the aging
process, or any other factors. If these
matters cannot be medically determined
without resort to mere conjecture, this
should be commented upon in the report.
If additional specialty examinations are
deemed necessary, they should be
conducted. The examiner must provide a
comprehensive report containing complete
rationale for all the opinions expressed.
The examination should be conducted and
reported in accordance with the
guidelines set forth in the VA
Physician's Guide for Disability
Evaluation Examinations. The claims
folder must be made available to the
examiner for review purposes prior to the
examination and the entry of the opinions
requested, and the complete examination
report should be associated with the
claims folder.
5. The RO should schedule the appellant
for a complete surgical examination in
order to determine the nature and
severity of service-connected residuals
of a pilonidal cyst excision. Initially,
the examiner is requested to review the
claims folder, including all service
medical and post-service medical reports
of record and adequately summarize all of
the relevant history, including relevant
treatment and previous diagnoses. Then,
the examiner is requested to provide an
opinion as to the nature and severity of
all residuals of such excision of a
pilonidal cyst, to include reported pain
and tenderness in the low back and
affected areas, as well as tender
scarring. The examiner is requested to
identify any muscle group and/or nerve
affected, if indicated, as well as any
impairment associated therewith, if
found. The examiner is further requested
to provide a detailed description of all
relevant scars and any impairment
associated therewith, including pain,
tenderness, ulceration, underlying muscle
damage, and limited motion of affected
parts. Color photographs should also be
taken, if appropriate. Objective range
of motion values, expressed in degrees,
for any affected part should be
performed. If limited motion is
demonstrated, an opinion as to any
increased functional loss due to painful
use, weakness, excess fatigability,
and/or incoordination of such affected
part should be rendered. All additional
indicated tests and studies should be
done. If any impairment found is due to
disability not the result of the service-
connected excision of a pilonidal cyst,
the examiner should so indicate. If
these matters cannot be medically
determined without resort to mere
conjecture, this should be commented upon
in the report.
The examination should be conducted and
reported in accordance with the
guidelines set forth in the VA
Physician's Guide for Disability
Evaluation Examinations. The claims
folder must be made available to the
examiner for review purposes prior to the
examination, and the complete examination
report, including color photographs and
electrodiagnostic reports, should be
associated with the claims folder.
6. The RO should review the
abovementioned examination reports and
medical opinions and determine if they
are adequate for rating purposes, and
particularly, are in compliance with this
Remand. If not, such examination reports
should be returned for corrective action.
7. Thereafter, the RO should
readjudicate the issues of entitlement to
a compensable evaluation for residuals of
an excised pilonidal cyst, as well as
service connection for a right ear
hearing disability, with application of
all appropriate laws, regulations, and
diagnostic codes, and any evidence
received pursuant to this Remand,
including the VA examination reports.
Also, the RO should consider whether the
appellant is entitled to an
extraschedular evaluation under 38 C.F.R.
§ 3.321(b) with regard to the issue of an
increased evaluation on appeal. See
Bagwell v. Brown, No. 95-0238 (U.S.
Vet.App. Jul. 3, 1996); Floyd v. Brown, 9
Vet.App. 88 (1996); Fisher v. Principi, 4
Vet.App. 57 (1993). Finally, the
appellant should be specifically advised
that he must file a Notice of
Disagreement and Substantive Appeal with
regard to any issue(s) not included in
the original Statement of the Case or
Supplemental Statements of the Case in
order to perfect his appeal with respect
to any additional issue(s). 38 C.F.R. §
20.302(c) (1995).
In order to avoid undue delay in this case, the RO should
make certain that the instructions contained in the REMAND
decision, detailing the requested development, have, in fact,
been substantially complied with. When this development has
been completed, and if the benefits sought are not granted,
the case should be returned to the Board for further
appellate consideration, after compliance with appropriate
appellate procedures, including issuance of a supplemental
statement of the case. It is requested that this statement
specifically set forth the reasons and bases for the
decision. No action by the appellant is required until he
receives further notice.
The Board intimates no opinion, either legal or factual, as
to the ultimate disposition warranted in these claims,
pending completion of the requested development.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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